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Wednesday, July 31, 2013

Houston - Authorities only need a court order and not a more
stringent search warrant to obtain cellphone records that can be used to track
a person’s movements, a federal appeals court ruled on Tuesday.

The 5th U.S. Circuit Court of Appeals overturned an order by
a Houston federal judge who had said cellphone data is constitutionally
protected from intrusion and can only be acquired with a search warrant.

In 2011, U.S. District Judge Lynn Hughes had upheld a
magistrate judge’s 2010 ruling that had denied a request by federal authorities
in three separate criminal investigations to compel cellphone companies to
provide — without a search warrant — 60 days of records for several phones.

In overturning Hughes’ order, the appeals court in New
Orleans said such data is a business record that belongs to the cellphone
provider.

It also said its collection by authorities does not have to meet a
probable cause standard as outlined under the Fourth Amendment, which protects
against unlawful search and seizure and requires a search warrant.

“We understand the cell phone users may reasonably want
their location information to remain private ... But the recourse for these
desires is in the market or the political process: in demanding that service
providers do away with such records ... or in lobbying elected representatives
to enact statutory protections.

The Fourth Amendment, safeguarded by the
courts, protects only reasonable expectations of privacy,” the three-judge
panel wrote in its 2-1 decision.

The cellphone data authorities had requested was being
sought under the Stored Communications Act, part of the Electronics
Communications Privacy Act.

The appeals court said under the Stored Communications Act,
authorities have the option of obtaining a court order — which has a lower
legal standard than a search warrant. With a court order, authorities only have
to demonstrate there are “reasonable grounds” to believe the information would
be relevant to an investigation.

Unlike the National Security Agency’s recently publicized
program that seized phone records in bulk through court orders approved by a
secret court, the cellphone records sought in this case related to specific
investigations and their seizure had to be approved through regular and
established legal procedures.

Angela Dodge, a spokeswoman for the U.S. Attorney’s Office
in Houston, which had fought Hughes’ order, said her office was pleased by
Tuesday’s ruling.

“We are gratified that the court found we acted in a manner
consistent with the law at the time. We felt we interpreted the law correctly
and welcome the agreement of the 5th Circuit,” Dodge said in an emailed
statement.

In court documents, prosecutors had argued that since such
cellphone data are actually business records owned by the providers, customers
have no reasonable expectation of privacy.

Officials with the American Civil Liberties Union, which had
filed legal briefs in the case asking that the rulings by Hughes and the
magistrate judge be upheld, said they were disappointed with the 5th Circuit’s
decision.

“This ruling fails to recognize that Americans do in fact
have a reasonable expectation of privacy in their cell phone location
information.

Where you go can reveal a great deal about your life, and people
don’t think that carrying a cell phone around means that someone can get a
detailed record of their movement for days or even months on end,” said
Catherine Crump, a staff attorney with the ACLU.

“The government should not be
able to access this personal, sensitive information without getting a warrant
based on probable cause. Unfortunately, the 5th Circuit’s decision allows
exactly that.”

Federal and state courts have been divided over the issue.

Earlier this month, the New Jersey Supreme Court ruled all
law enforcement officers in that state must get a search warrant based on
probable cause if they want access to cellphone locating data.

Earlier this year, both Maine and Montana passed legislation
requiring authorities to obtain a search warrant to get location information
from a person’s cellphone.

Crump said she believes this issue will probably have to be
decided by the U.S. Supreme Court.

“This question is one of crucial significance to every
American that carries a cellphone,” she said.